EMX17 v Minister for Immigration and Border Protection

1. The appeal is dismissed.
2. The appellant must pay the first respondent's costs of the appeal, to be fixed in the amount of $4,500. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKSON J: 1 This is an appeal from a decision of the Federal Circuit Court of Australia dismissing the appellant's application for judicial review of a decision of the second respondent, the Immigration Assessment Authority. The Authority had affirmed a decision of a delegate of the first respondent (the Minister) to refuse a safe haven enterprise visa, which is a class of protection visa. 2 The background is set out in the primary judge's reasons: EMX17 v Minister for Immigration and Border Protection [2019] FCCA 284 at [2]-[4]. It is unnecessary to set it out in detail. The salient points are that the appellant applied for Australia's protection on the ground that he faced persecution as a Shia Hazara from an area in Balochistan Province in Pakistan. He claimed to fear that he would be harmed by extremist Sunni groups if he were to return to Pakistan because of his Hazara ethnicity and Shia religion, and because of his profile with militants and the authorities. He claimed not to be safe anywhere in Pakistan. 3 The appellant was legally represented in the Federal Circuit Court and at the time of filing of his notice of appeal. But he represented himself (with the assistance of an interpreter) by the time of the hearing of this appeal. There was one ground of appeal: The Federal Circuit Court erred in failing to find that the Immigration Assessment Authority erred by failing to apply the 'real chance' test when it concluded that there was no real chance that the Appellant would face serious harm in Islamabad. This essentially repeated the sole ground of review before the primary judge 4 The appellant has filed no written submissions in the appeal. It is nevertheless possible to discern from the written submissions filed on his behalf in the Federal Circuit Court that the ground of review and the ground of appeal focus on the following passage from paragraph 49 of the Authority's reasons (emphasis added in the submissions): [w]hile it is possible … that sectarian groups may target Shias in Islamabad in future, I consider it speculative to suggest that this will occur and that violence against Shias in Islamabad will increase in future … 5 The Authority said this in the context of having found that there was a small but real chance of harm to the appellant due to ongoing sectarian violence in Balochistan, but that this did not apply to all of Pakistan (Islamabad being outside Balochistan). The written submissions say that the passage demonstrates that the Authority had required the appellant to show not that there was a real chance of persecution, but instead that there 'will' be persecution. 6 It is immediately apparent that this argument is based on a fundamental misreading of the passage. The Authority is neither saying nor assuming that the appellant must demonstrate that targeting of Shias in Islamabad will occur, or that violence against Shias in Islamabad will increase. It is saying that those are speculative suggestions. So the finding is that the chance that either of those things will occur is speculative. 7 Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ explained the role of speculation in relation to findings about a well-founded fear of persecution in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 572: In the present case, for example, Einfeld J thought that the 'real chance' test invited speculation and that the Tribunal had erred because it 'has shunned speculation'. If, by speculation, his Honour meant making a finding as to whether or not an event might or might not occur in the future, no criticism could be made of his use of the term. But it seems likely, having regard to the context and his Honour's conclusions concerning the Tribunal's reasoning process, that he was using the term in its primary dictionary meaning of conjecture or surmise. If he was, he fell into error. Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is 'well-founded' when there is a real substantial basis for it. As [Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389] shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. 8 This passage appeared in the course of their Honours expressing caution about the substitution of the 'real chance' test for the 'well-founded fear of being persecuted' test that then applied by direct application of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The 'real chance' of persecution test has since been enshrined in s 5J(1)(b) and s 5J(1)(c) of the Migration Act 1958 (Cth). But the observations their Honours make in this passage, with respect, remain pertinent. It is sometimes said that decision-makers do need to engage in speculation: see e.g. MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441 at [94]-[95]; CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14; (2018) 260 FCR 134 at [23]; and AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47 at [48]. But that does not mean that speculation, in the sense of conjecture or surmise, is capable of satisfying the 'real chance' test. 9 It is clear that when the Authority used the adjective 'speculative' in the passage that the appellant criticised before the primary judge, that is how it was describing the relevant suggestions - as mere conjecture or surmise. Using the word in this way is consistent with a correct understanding of the 'real chance' test; that is, in fact, one of the things that Brennan CJ, Toohey, McHugh and Gummow JJ confirmed in the oft-cited decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (see at 277-278). 10 The primary judge found that the Authority's reasoning in the passage criticised by the appellant here involved a correct application of the 'real chance' test. His Honour was correct to do so. The central argument advanced by the appellant before the primary judge was untenable. 11 The appellant's written submissions to the Federal Circuit Court also identified other passages in the Authority's reasons which, it was said, contained findings in favour of the appellant that indicated he would be exposed to a real chance of persecution. It was submitted that these passages implicitly demonstrated a misunderstanding of the standard that the appellant had to satisfy in order to demonstrate that he faced that real chance. 12 The primary judge nevertheless found that the Authority's reasons involved a correct application of the 'real chance' test. Having read the Authority's reasons, I agree. After summarising the appellant's protection claims, the Authority correctly stated the legal test, including the test under s 5J of the Migration Act (para 10). It referred to country information indicating that in 2014 the Pakistani government conducted a major counter-terrorism operation and announced a 'National Action Plan', both of which contributed to a decline in generalised and sectarian violence in the country (paras 13-14). Nevertheless, some sectarian violence continued and Shias represented a higher proportion of those attacked and killed (paras 15-16). 13 The Authority considered the situation that would face the appellant, as a Shia and Hazara, if he were to return to his home province of Balochistan. It did not accept the appellant's evidence as to certain incidents, in which he said he had been in a taxi that was attacked and that he was subsequently the target of threatening conduct (paras 20-26). The Authority did not accept that the appellant had been of adverse interest to the authorities or Sunni extremist groups. But after further surveying country information about a bomb blast in Quetta, the city in Balochistan where the appellant had lived, and more generalised country information, the Authority did accept that there was a 'small, but nevertheless real, chance of harm to the applicant as a Shia Hazara in the form of possible loss of life or serious injury as a result of sectarian attacks and the security situation in Balochistan' (para 29). 14 Then the Authority noted, correctly, that under s 5J(1)(c) of the Migration Act, in order for the appellant to have a well-founded fear of persecution, the real chance of harm needed to relate to all areas of Pakistan (para 30). It surveyed country information about Islamabad, including information about three sectarian attacks in and near Islamabad in 2015 (para 33). There was limited evidence of threats to members of the Shia Pashtun Turi tribe in Islamabad, but one such possible attack had been thwarted and the perpetrators prosecuted. The threats had not translated to actual attacks. In the period from October 2008 to 13 August 2017 there had been only one recorded death of a Shia Muslim in a sectarian attack in Islamabad, and that was a targeted killing of a Shia political leader in 2014 (paras 34-35). And there was no evidence of any attacks or planned attacks on Shia Hazaras in Islamabad (para 36). 15 The first finding of the Authority relied on by the appellant as contradicting the conclusion of no real risk of persecution was at paragraph 37, which the appellant's submissions to the primary judge summarised as saying that 'although Shia Hazaras had not "in fact been targeted in attacks in attacks [sic] in Islamabad", it was "plausible … that Hazara Shias in Pakistan might be targeted by Sunni extremist groups"'. Presumably, the suggestion is that the plausibility of such attacks would support a finding of a real risk. But that suggestion evaporates when one looks at what the Authority actually said: While I accept as plausible the proposition that Shia Hazaras in Pakistan might be targeted by Sunni extremist groups for this reason [Hazara participation in the Syrian war], there is no evidence before me that Hazara Shias have in fact been targeted in attacks in Islamabad, or anywhere else in Pakistan, on this basis. 16 So the plausibility of the proposition was no more than that. It was plausible, but had no support in the evidence. Mere plausibility does not equate to a real chance. The appellant's submissions to the Federal Circuit Court take isolated phrases out of context, to try to make them convey a meaning that the passage as a whole does not bear. 17 The Authority's reasons went on to consider whether the appellant had a particular profile or other characteristics that would expose him to harm in Pakistan. The Authority considered that there was nothing other than his position as a readily identifiable Shia Hazara, but said 'the evidence before me suggests that attacks on Shias in Islamabad, including attacks on Shia religious events and venues, are rare, and as discussed, there is no evidence of past attacks on Hazaras in Islamabad' (para 40). 18 After dealing with some claims said to arise out of the appellant's return from Australia as a failed asylum seeker, the Authority returned to the subject of anti-Shia militant activity in Pakistan. The Authority reviewed the country information on the activities of certain militant groups and accepted that 'a number of anti-Shia sectarian groups are present and active in Pakistan and that it is possible that they may increase their activities and the spread of their activities in Pakistan in future' (para 44). It considered evidence of specific sectarian attacks and accepted 'that past sectarian attacks in Islamabad may have been planned or perpetrated by groups, or members of groups, based outside Islamabad' (para 45). It went on to consider information about a specific militant cleric associated with a particular mosque in Islamabad (para 46). It accepted that anti-Shia groups may have been present in Islamabad and that the mosque and cleric referred to had been a focus of anti-Shia activity in Islamabad in the past and may continue to be so in the future (para 47). It also accepted that the Pakistani government had been criticised for failing to take action against some Sunni extremists (para 47). The appellant's submissions before the Federal Circuit Court picked out these passages and said that they contradicted the Authority's finding that the appellant did not face a real chance of harm as a result of sectarian attacks. 19 However the Authority also referred to significant measures taken by the Pakistani government to address sectarian attacks which indicated 'very significant reductions in terrorist and sectarian attacks in Pakistan achieved by Government initiatives in recent years' (para 48). The Authority said that the evidence suggested that the concerns about militant activity and government collusion which it had summarised and, to some extent, accepted 'have not translated into sectarian attacks on Shia Muslims in Islamabad, other than the 2014 targeted killing of a Shia political figure referred to above'. 20 Then, the Authority expressed its conclusions as to what that evidence says about the chance of future harm to the appellant (para 49). This paragraph contains the passage picked out by the appellant's submissions to the Federal Circuit Court, which I dealt with at the outset of these reasons. The paragraph in full is: The applicant's representative suggests that the recent absence of attacks on Shia Muslims in Islamabad should not be taken as a reliable indicator of the future chance of harm to the applicant given that [sic] the fluid nature of the security situation in Pakistan. However, there is very limited evidence of past attacks on Shias of any ethnicity in Islamabad over an extended period of time, and no credible evidence before me to suggest that the situation in Islamabad will change in the foreseeable future. The evidence indicates that although there are some troubling and inconsistent aspects to the Pakistani Government's approach, the initiatives taken by the government reflect a sustained commitment to reducing terrorist and sectarian violence in Pakistan. While it is possible that the government's commitment to reducing sectarian and other violence may change, and that sectarian groups may target Shias in Islamabad in future, I consider it speculative to suggest that this will occur, and that violence against Shias in Islamabad will increase in future for this or another reason. I am not satisfied that there is a real chance of harm to the applicant as a result of sectarian attacks on the basis of his Shia Hazara identity, or the security situation, in Islamabad. 21 So the crux of the Authority's reasons was that there was limited evidence of past attacks in Islamabad and no credible evidence that the situation would change. The passage at the end of the paragraph on which the appellant's submissions focussed merely reinforces the latter point, by saying that any suggestion that the situation will change is mere speculation, in the sense of conjecture or surmise. 22 It was open to the Authority to make these findings. They display no misunderstanding of the criteria for assessing the risk of persecution that are laid down in s 5J of the Migration Act. The Authority was reasoning from past events to assess future probabilities, in the way endorsed in Guo (at 574-575). The appellant's submissions selected parts of the Authority's reasons and took them out of context to seek to demonstrate that the Authority misunderstood the test. When assessed as a whole, as they must be, the reasons do not bear that out. 23 While it was not put in the ground of review, the primary judge also considered whether the passages identified by the appellant showed there was internal contradiction and therefore illogicality in the Authority's decision, pointing to a jurisdictional error of the kind identified in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135]. The primary judge found no contradiction and therefore no illogicality in the Authority's decision. For reasons I have explained, his Honour was correct. 24 At the hearing of the appeal I invited the appellant to say anything else he wanted to say about why the primary judge made an error. Through the interpreter he raised four points. The first concerned difficulties he said he would experience in obtaining a place to live if he was forced to relocate to Islamabad. Counsel for the Minister submitted that these claims were not part of the material before the Authority or before the primary judge. 25 The second point was that he had a profile in Quetta, Balochistan, because of his role in the local business community. He also referred to the claimed attack on the taxi. Counsel for the Minister submitted that these claims, even if true, were of no relevance because the Authority had accepted that the appellant faced a real risk of persecution in Balochistan, but the key issue was whether he could relocate to Islamabad. 26 The third point was that the idea that the appellant could live in Balochistan was a theoretical one only, and not a practical assessment. Counsel for the Minister submitted that if practicality referred to difficulties in the appellant becoming established in Islamabad, that issue was not before the Authority or the primary judge. If the point being made was that it would be unsafe for the appellant in Islamabad, that was an impermissible attempt to reopen the factual merits of the Authority's decision. 27 The final point the appellant made was that he believed his life was in danger and his wife had asked him to apply to be a refugee in Australia because then his family would be safe. To that, counsel for the Minister submitted that the relevant question before the Authority was whether it would be safe for the appellant to live in Islamabad. 28 It suffices to say that I accept the submissions that were made on behalf of the Minister in response to the points that the appellant raised. While it is understandable that the appellant wished to raise these points, they do not go to any issue before the primary judge and cannot indicate that his Honour made any error. The appellant claimed that he had raised these points with the solicitors who began to represent him during the course of the Federal Circuit Court proceedings. But even if that is so, it is difficult to see how those solicitors could have put forward any of these matters as showing that the Authority fell into jurisdictional error if they had not been raised before the delegate of the Minister and thus were not before the Authority. 29 The appeal must be dismissed, with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jackson.